A judge must allow for expunctions of criminal records at sentencing or not at all, the State Supreme Court has ruled.

Post-sentencing requests by a defendant to expunge are too late.

By statute, a Wisconsin court may order “at the time of sentencing” that a sentence be expunged upon its successful completion if the maximum period of imprisonment for the offense is 6 years or less and the defendant was under 25 years old at the time the offense occurred.

A bill that would allow for post-sentencing expunction requests is pending in the Assembly. The Senate version passed on a 30-2 vote, with State Senators Mark Miller (D-Monona) and Fred Risser (D-Madison) opposed.

The bill would allow qualified offenders to apply for expunction after they successfully complete their sentences.

“It is difficult for the court to know at sentencing whether the standards for expungement have been met, that is, whether the defendant will benefit and society will not be harmed,” Rock County Circuit Judge James Daley said in testimony prepared for a public hearing on the bill. “It makes far more sense to have this decision made later, after defendants have had an opportunity to demonstrate they have pulled their lives together and can be contributing members of society.”

The State Public Defender’s Office and the Association of State Prosecutors also testified in favor of the bill.

In the case before the Supreme Court, Diamond Arberry pled no contest to retail theft and attempted retail theft of merchandise. The Fond du Lac County Circuit Court judge sentenced her to one year of initial confinement and two years of extended supervision for one offense and two years of probation for the other.

Arberry met the threshold requirements for expunction of those sentences, but during the sentencing hearing neither Arberry nor the judge raised the issue.

Several months after sentencing, Arberry moved for an amended judgment finding her eligible for expunction after she completed the sentence. The trial court judge denied the motion, and the Wisconsin Court of Appeals affirmed.

The Supreme Court, in its decision, concluded that a post-sentencing motion seeking expunction is procedurally barred by statute and precedent. The Court held that “at the time of sentencing” means only the time when sentence is imposed and does not include post-sentencing motions.

Further, the Supreme Court rejected Arberry’s argument that the sentencing court must raise and consider expunction on its own if a defendant is eligible. Instead, said the Court, “it is the defendant’s burden to raise the issue of expunction.”